History and development of the ICAC Act

"Nothing is more destructive of democracy than a situation where people lack confidence in those administrators that stand in a position of public trust. If a liberal and democratic society is to flourish we need to ensure that the credibility of public institutions is restored and safeguarded and that community confidence in the integrity of public administration is preserved and justified."

In 1988 a new government was elected with a promise to establish an Independent Commission Against Corruption, an aim supported by the Opposition. Introduction of necessary legislation was a priority.

The Bill to establish the ICAC, following extensive debate in the Legislative Assembly and the Legislative Council, was allowed to lapse. A second Bill, incorporating various changes resulting from Parliamentary debate, was passed by both Houses of Parliament, and assented to by the Governor on 6 July 1988.

Following amendments to the legislation, on 6 August 1988 the then Premier, Mr Nick Greiner, introduced the Independent Commission Against Corruption (Amendment) Bill 1988. It passed swiftly through both Houses of Parliament and received royal assent on 9 August 1988.

Amendments to the ICAC Act

A number of amendments have been made to the Independent Commission Against Corruption Act 1988 ("the ICAC Act"):

Significant amendments made in December 1990 overcame problems identified in the course of litigation against the ICAC. These included changes to clarify the aims of ICAC investigations and the ICAC's powers to make findings in its reports.

In 1994 the definition of corrupt conduct was modified to extend its application to the conduct of members of Parliament. A new Part was also inserted into the Act to constitute two committees of Parliament to prepare draft codes of conduct and provide advice and education on ethical standards applying to members of both Houses of Parliament.

A number of amendments were made in 1996 concerning the ICAC's powers. In particular, its powers to provide protection for witnesses were enhanced.

The Police Integrity Commission, established in 1997, assumed responsibility for investigating allegations of police corruption.

In response to the High Court's decision in ICAC v Cunneen [2015] HCA 14, which threw into doubt earlier ICAC corrupt conduct findings, the NSW Government introduced the Independent Commission Against Corruption Amendment (Validation) Act 2015.

The NSW Government also adopted the recommendations of an Independent Panel and introduced the Independent Commission Against Corruption Amendment Act 2015, which effected a number of significant changes to the ICAC Act, primarily affecting the Commission's jurisdiction.

Independent Commission Against Corruption Amendment Act 2005

In June 2004 the Premier announced that the ICAC Actwould be reviewed to determine whether the terms of the Act remained appropriate for securing the ICAC's objectives.

The Hon Justice Jerrold Cripps QC was appointed by the Premier to undertake the review, with a scheduled completion date of 29 October 2004. Justice Cripps withdrew from the review upon his appointment as ICAC Commissioner and Bruce McClintock SC was appointed to take over and complete the review by 31 January 2005.

The McClintock report made a number of recommendations to amend the ICAC Act and these were considered in the drafting of the Independent Commission Against Corruption Amendment Bill 2005, which was introduced into the Legislative Assembly on 23 February, passed through both Houses and was assented to on 14 April 2005.

The Independent Commission Against Corruption Amendment Act 2005 ("the Amendment Act 2005") made a number of changes which provide greater accountability for the use of the ICAC's extensive powers. These include the establishment of an independent Inspector of the ICAC and additional public reporting requirements in relation to ICAC investigations.

The Inspector of the ICAC is responsible for overseeing the ICAC's use of investigative powers and for investigating any complaints against ICAC officers.

The Amendment Act 2005 also:

renamed public hearings of the ICAC as "public inquiries" and private hearings as "compulsory examinations" (The purpose of these changes in terminology was to better reflect the fact that the ICAC exercises administrative investigative, not judicial, functions)

requires the ICAC to include additional information about its investigations and the time taken to complete them in its annual report

expressly requires the ICAC to provide reasons to complainants and reporting officials for not investigating allegations of corruption

restricts the power of the ICAC to refer to the Supreme Court contempts of the ICAC and clarifies the procedures for punishing such contempts

creates offences of threatening Counsel Assisting the ICAC or legal practitioners or witnesses appearing before the ICAC

transfers responsibility for the investigation of allegations of misconduct against civilian employees of NSW Police to the Police Integrity Commission, and

makes a number of other minor amendments.

Independent Commission Against Corruption Amendment Act 2008

In 2008, section 11 of the ICAC Act was amended to require Ministers of the Crown to notify the ICAC of possible corrupt conduct. This notification can be made‚ directly‚ to the ICAC or to the head of any agency responsible to the Minister. A number of other amendments were also made.

On 15 April 2015, the High Court's decision in ICAC v Cunneen [2015] HCA 14 was handed down.

From its inception the ICAC interpreted the definition of "corrupt conduct" in section 8(2) of the ICAC Act as extending to conduct that adversely affects or could adversely affect the "efficacy" of the exercise of an official function by a public official in the sense that the official could exercise the function in a different manner or make a different decision. The majority of the High Court in Cunneen said that this interpretation was wrong and that the expression "adversely affect" in section 8(2) of the ICAC Act refers to conduct that adversely affects or could adversely affect the "probity" of the exercise of an official function by a public official.

This decision affected the Commission's jurisdiction in relation to some past investigations and threw into doubt earlier ICAC corrupt conduct findings where these were based on conduct that could adversely affect the "efficacy" of public official functions. In response to Cunneen, the NSW Government introduced the Independent Commission Against Corruption Amendment (Validation) Bill 2015 on 6 May 2015. The Bill was passed by Parliament and received assent on that same day. This legislation inserted a new Part into the ICAC Act. The effect of this was to validate certain conduct of the ICAC before 15 April 2015 including findings of corrupt conduct that were based on conduct that adversely affects or could adversely affect the "efficacy" of public official functions.

Independent Commission Against Corruption Amendment Act 2015

In light of the decision of the High Court of Australia in Cunneen, the NSW Government commissioned an Independent Panel comprising the Hon Murray Gleeson AC and Mr Bruce McClintock SC to review the ICAC Act and recommend whether any limits or enhancements should be applied to the exercise of the ICAC's powers. On 30 July 2015, the Independent Panel completed its report which made a number of recommendations to amend the ICAC Act. The Panel's recommendations were adopted in the drafting of the Independent Commission Against Corruption Amendment Bill 2015 which was introduced into the Legislative Assembly on 8 September 2015, passed by Parliament on 16 September 2015 and assented to on 28 September 2015.

The Independent Commission Against Corruption Amendment Act 2015 makes a number of significant changes to the ICAC Act including:

clarifying the definition of corrupt conduct to include particular conduct that impairs or could impair public confidence in public administration;

enhancing the Commission's functions of advice, education and prevention;

expanding the Commission's functions to include investigating certain conduct referred to it by the Electoral Commission; and

limiting the power of the Commission to make findings of corrupt conduct only in relation to cases where there is serious corrupt conduct.

Independent Commission Against Corruption Amendment Act 2016

On 1 June 2016, the Parliamentary Committee on the ICAC commenced an inquiry in relation to two reports of the Inspector of the ICAC. The Committee published its report on 27 October 2016.

On 15 November 2016, the Independent Commission Against Corruption Amendment Bill 2016 was introduced to give effect to the Committee’s recommendations. Parliament passed the Bill on 16 November 2016, it was assented to on 23 November 2016, and it commenced on 7 August 2017.

The Independent Commission Against Corruption Amendment Act 2016 makes the following changes:

the appointment of a Chief Commissioner and two part-time Commissioners who may exercise the functions of the Commission;

the power to conduct a public inquiry must be authorised by the Chief Commissioner and at least one of the Commissioners;

a requirement to issue public inquiry guidelines to ICAC staff and Counsel Assisting the Commission to ensure procedural fairness during public inquiries;

a requirement to give a person an opportunity to respond before including an adverse finding or opinion about the person in an investigation report, and to include in the report a summary of the substance of any response if requested to do so;

the appointment of a Chief Executive Officer responsible for the day to day management of the ICAC; and

allows the ICAC to exercise its formal powers under sections 21, 22, 23 and 40 of the ICAC Act after completion of an investigation where the Director of Public Prosecutions or the Electoral Commission requests such exercise for the purpose of gathering and assembling admissible evidence for a criminal prosecution.